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Fair Work Amendment Bill update

Fair Work Amendment Bill update (Last Updated On: November 3, 2015)

Last year, the business community welcomed the news of the Fair Work Amendment Bill 2014 being introduced by the Coalition Government. In its original form, the Bill sought to make the process for creating Independent Flexibility Arrangements (IFAs) easier, to restrict the rights of entry for Union delegates and their ability to issue Protected Action Ballot Order and to increase the powers of the Fair Work Commission (FWC) to dismiss unfair dismissal claims and to intervene in greenfield negotiations between Unions and Employers.

However not all of the amendments received praise and agreement from cross-benchers in the Senate.  After several changes to the Bill were agreed to by the Coalition, we now have a few of the original changes about to take place on our workplace relations platform.

So, which amendments are here to stay?

1. Employers must now have a discussion with any employee requesting an extended period of unpaid parental leave

Previously, a business was able to decline a request from an employee to remain on unpaid parental leave after 12 months, for an additional 12 month period, if that decision is based on reasonable business grounds.

The changes mean that an employer will need to ensure that a discussion either by phone or in person, and not by text message or email occurs between them and their employee prior to declining any such requests for an additional period of unpaid parental leave.

2. Unions will no longer be entitled to apply for, or issue a Protected Action Ballot Order in circumstances where bargaining with the employer has not commenced

Previously, a Union would be entitled to instigate protected industrial action where an employer was not willing to enter into collective bargaining. The changes mean that the Union will need to apply to the FWC for a majority support determination, rather than simply being able to commence the process for protected industrial action.

This is a win for the business world, which in combination with the third amendment below means that there will now be on a far more balanced playing field between employers and Unions when it comes to bargaining requirements.

3. Amendments to greenfield agreements

Greenfield agreements are agreements between unions and new enterprises which do not yet have staff. Previously, the Fair Work Act 2009 (the Act) allowed Unions to cause protracted negotiations and to hold out on making an agreement to compel the employer to agree to higher wages. This created major delays to the commencement of building and infrastructure projects, resulting in a loss of time, money, and in the worse scenarios, Australian jobs.

The changes mean that an Employer can now progress negotiations, by referring the agreement to the FWC after the initial negotiation period between the Employer and the Union has passed. The FWC will base their determinations on a Better Off Overall Test and an assessment on the pay and conditions being in line with those of the industry.

Amendments to our industrial relations environment represents a high risk period of change and adjustment for Employers. Employers should also be aware of the confusion this creates for Unions and employee representatives, and not assume that conditions being requested by those parties are compliant with the Fair Work Act 2009, or any amendments to the Act.

To be certain of your entitlements and ensure you are compliant with all legislation, please call Employsure on 1300 651 415 in relation to any negotiation over the terms of employment (whether relating to a collective agreement or individual employees), parental leave or other employee entitlements. This may be the difference between a productive and collaborative workplace, or an unbalanced and uncompetitive business.

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